Looking for Real Action? Focus on Agencies and Courts … not the Hill

Regulatory actions and judicial judgments, rather than legislation from a divided Congress, seen as key for climate change in 2013 in Nation’s Capital.

Some new faces, lots of old antagonisms, and one big decision.

That’s the rough 2013 outlook for the Nation’s Capital as it relates to climate change and energy policy, observers say, wary that even a few small personnel changes in key positions can have a meaningful impact in institutions as opaque as the U.S. House and Senate.

With a slightly modified Congress settling in and reverberations of Superstorm Sandy still reshaping related debates, many wonder if climate change might make its way back into the policy spotlight. (It’s a spotlight in which the climate focus may be somewhat dimmed, at least temporarily, as a result of the powerful political and policy emphasis now on gun control in the wake of the December Sandy Hook Elementary School killings.)

President Obama, speaking with Time magazine before the Sandy Hook killings, had listed climate change and related energy issues as among his top three second-term priorities. Sandy Hook and the administration’s laser-like focus on gun control and related mental health issues and, of course, on looming economic issues may have changed the equation. And after the President’s first inaugural pledge to “work tirelessly” to “roll back the specter of a warming planet,” there is room for uncertainty, in particular from a legislative standpoint, on what the president’s second inaugural and second term might hold — and if actions will match rhetoric.

Further, a monumental EPA regulatory decision — final Clean Air Act rules for carbon emissions from new coal- and natural gas- fired power plants — may be among the most consequential climate-related domestic initiatives to emerge from Washington. Once adopted, those new regulations will ultimately trigger a review of rules for existing plants, some experts predict. And virtually all observers foresee the rules triggering a series of court challenges.

Hill Personnel Changes and Purges and Fresh Faces

“The congressional portrait has changed only a little,” Evan Lehmann, a ClimateWire reporter who covers Congress, lobbying and insurance, told The Yale Forum. “All the macro forces remain in place in the House and Senate, leaving a split balance of political power that closely resembles the last two years. Other forces, like the economy and natural disasters, could be more persuasive.”

Lehmann said it’s worth keeping an eye on incremental changes as climate-driven policy creeps into new areas:

While maximum policies like capping carbon are dreamy for advocates, smaller steps are already happening. Hurricane Sandy is resulting in tougher building standards locally. That’s climate adaptation. The Feds are involved here, too. The National Flood Insurance Program, which influences how high homes are built, and how close to shorelines, is pushing New Jersey and New York towns to toughen up before the next storm strikes.

Louisiana Republican Vitter is ranking minority member on Senate Environment and Public Works Committee.

In the 113th Congress, Senator James Inhofe, R.-Okla., long one of Washington’s most vociferous opponents of consensus climate science, is gone from his perch as the senior minority member of the Senate Environment and Public Works Committee. (Inhofe had chaired the full committee in previous sessions when Republicans were in the majority in the Senate.) Gone with him, in what National Journalcharacterized as a kind of “purge,” are the professional staff who had worked for him on the committee.

It’s unclear how his replacement, David Vitter, R-La., might use his position, but observers on both sides expect his approach will be different in tenor, if not in substance, even as he tangles with the Committee’s liberal Democratic Chair, Barbara Boxer of California.

Oregon Democratic Senator Wyden’s two key committee assignments give him key posts on climate and on budget and finance issues.

“He has not been as vocal as his predecessor, Senate Inhofe, in expressing his skepticism about Senator Boxer’s proposals on climate change,” said Jeffrey Holmstead, a former EPA assistant administrator under President George W. Bush and now an attorney with Bracewell & Giuliani, which represents a number of energy companies. “But I think he shares Senator Inhofe’s views and will have a hard time finding common ground with Senator Boxer.”

Other personnel changes also could foreshadow new approaches and proposals.

Jonas Monast, director of the Climate and Energy Program at Duke’s Nicholas Institute for Environmental Policy Solutions, says he anticipates that the ongoing fiscal policy maneuverings may feature some important climate-related items. He notes that the new chair of the Senate Committee on Energy and Natural Resources, Ron Wyden, D.-Ore., could make a difference, as he also has seniority on the finance and budget committees. Monast told The Yale Forum:

As a long-time proponent of renewable energy, Senator Wyden will likely argue for continued federal support for clean energy technologies. Senator Wyden has indicated that he sees a possibility for bipartisan legislation addressing natural gas. That debate would likely include disclosure of hydrofracking chemicals, water quality protections, and limiting methane emissions. If a natural gas bill does develop, Congress could expand the focus and include other energy measures, as well.

Four of ‘Flat Earth Five’ Defeated, But Gridlock Remains

Shaping all of these shifts, of course, as well as the new atmosphere, are the fresh dynamics from the November 2012 elections and the reverberations of the giant energy-related “ad war” fueled by unprecedented campaign spending.

Election spending by fossil fuel interests likely far outstripped the spending of “green groups,” according to a preliminary analysis by The New York Times. That outcome contrasts with the 2008 election cycle pattern, when green ad spending exceeded ad buys from fossil fuel interests.

But the energy interests’ spending did not achieve the kinds of election victory returns they had hoped for.

In the wake of the election, green groups — particularly a well-funded coalition effort by the League of Conversation Voters (LCV), NRDC Action Fund, Defenders of Wildlife Action, Environment America, National Wildlife Action, and Sierra Club — have been touting their campaign successes and clout.

Indeed, LCV spending and campaigning helped defeat four of the five congressional candidates it had labeled collectively as the “Flat Earth Five.” LCV also recently pointed out that 34 newly elected legislators with solid green credentials were sworn into the 113th Congress; these candidates were all backed by LCV’s political action fund.

“This is an important development, but it is unlikely to fundamentally alter the balance of power in the House of Representatives,” Daniel Weiss, Senior Fellow and Director of Climate Strategy at the liberal-leaning Center for American Progress Action Fund, told The Yale Forum. “The districts created after the 2010 census, which will last until 2022, have a decidedly Republican tilt.”

Hill Action the Focus of Attention … But Watch Agencies, Courts

Capitol Hill attracts all the pizzazz and attention in Washington from major news media outlets. The usually more-pedestrian and less glitzy regulatory bodies more often are considered the day in/day out domain of scores of pricey “inside the Beltway” newsletters and their hundreds of reporters.

Few will be surprised if much of Washington’s “real work” on climate change policies takes place far from the cameras and the glitz of the Senate and the House: But it’s still on the latter that many “Washington watchers” will focus most of their attention, while the action in fact plays out across the alphabet soup of Executive Branch departments and agencies.

Despite the departure of EPA Administrator Lisa Jackson, the agency is virtually certain to push forward and adopt carbon emission regulations for any new coal and natural gas power plants. Those rules represent the culmination of a controversial and historic decade-long effort to regulate carbon dioxide through existing legal authorities and regulatory agencies, avoiding inevitable difficulties associated with passing sweeping new legislation.

“Once finalized, the rule covering new power plants will trigger a requirement that the EPA and the states develop rules limiting CO2 emissions from existing power plants,” said Monast, of Duke’s Nicholas Institute. (See the white paper he co-authored for more on the process, sequence and technical details.)

“This step will dramatically expand the scope and the impact of the EPA’s efforts to address climate change under the Clean Air Act,” Monast said. “The section of the Clean Air Act covering existing source performance standards grants a fair amount of flexibility to the EPA and the states, potentially allowing states to experiment with energy efficiency, renewable energy, and market mechanisms to limit emissions.”

Holmstead, of Bracewell & Giuliani, agrees that most of the climate- and energy-related action over the next two years in Washington will be focused around EPA and the courts: “The first big test will be whether the Obama folks issue a final rule that effectively bans new coal-fired power plants, as they proposed last year. A lot of us who have worked on Clean Air Act issues over the years believe that this approach is pretty clearly illegal and won’t stand up in court, but they may go ahead anyway. If so, the real action will be in the D.C. Circuit.”

Progressive groups acknowledge the challenges and the likely fight ahead on this regulatory front in 2013. And Republicans — still with a healthy, if somewhat diminished, House majority and significant oversight power — are keen to frame the issue as a fight over the economy and American jobs.

“The most feasible path to reduce the carbon pollution responsible for climate change is setting pollution limits for existing power plants, oil refineries and other large emitters as required by the Clean Air Act,” said Weiss, of the Center for American Progress, which has close ties to the Obama White House and has expressed praise for the many clean energy successes of the first term.

“President Obama can take these steps without Congress, though he must be prepared to defend these actions from congressional efforts to undo them.”

In the end, that, and not necessarily real progress toward an international “grand scheme” accord, may be the single most important Washington climate story to watch out for in 2013. And its outcome remains very much uncertain at this point.

John Wihbey

A regular contributor to Yale Climate Connections, John Wihbey is an editor and researcher at the John F. Kennedy School of Government at Harvard. (E-mail: john@yaleclimateconnections.org, Twitter: @wihbey)